Freckleton v Carrington

[2024] NSWLEC 1849

Land and Environment Court

New South Wales

Medium Neutral Citation:

Freckleton v Carrington [2024] NSWLEC 1849

Hearing dates:

13 December 2024

Date of orders:

13 December 2024

Decision date:

13 December 2024

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The Pt 2 application is refused.

(2) The Pt 2A application is refused.

(3) The exhibits are returned other than Exhibit A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – whether trees have damaged or are likely to damage property – Pt 2A application – neighbouring hedge – bamboo – obstruction of views and sunlight – whether the obstruction is severe

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10; Pt 2A, ss 14A, 14B, 14D, 14E, 14F

Cases Cited:

Smyth v Hayim [2012] NSWLEC 1318

Yang v Scerri [2007] NSWLEC 592

Category:

Principal judgment

Parties:

Anthony Freckleton (Applicant)
Genevieve Carrington (Respondent)

Representation:

Counsel:
A Freckleton (Self-represented) (Applicant)
E Young (Respondent)

Solicitors:
Antcliffe Scott Pty Ltd (Respondent)

File Number(s):

2024/327918

Publication restriction:

Nil

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

1. COMMISSIONER: Anthony Freckleton and Genevieve Carrington are neighbours on the upper slopes of Balgowlah Heights. Both properties face east towards North Harbour and Manly. Ms Carrington has two rows of bamboo in her front garden near the common boundary dividing their properties. Mr Freckleton claims the bamboo obstructs, or will obstruct, views from his dwelling, and will damage his property.

2. The final hearing in these proceedings took place onsite, allowing the Court to inspect the trees, both properties and all relevant issues. Mr Freckleton was self-represented; Mr Young, of Counsel, represented Ms Carrington.

The trees

3. Ms Carrington has two rows of slender weavers bamboo (Bambusa textilis var. gracilis) in a narrow garden bed in front of her dwelling, adjacent to the common boundary shared with Mr Freckleton. The two rows were planted separately and, for the purpose of this decision, I refer to them as Hedge 1 and Hedge 2.

4. Hedge 1 was planted first. It is very close to the common boundary. It was pruned during the weekend before the onsite hearing – some bamboo culms reached almost to the height of Mr Freckleton’s double-storey eaves before pruning, but the hedge was around 2.5 metres in height at the hearing.

5. Hedge 2 was planted recently in a narrow bed. It is slightly more than 2.5 metres in height.

6. Trees covered by the Trees Act include bamboo. The bamboo is planted to form hedges and is more than 2.5 metres tall, so Pt 2A of the Trees Act applies to the bamboo: s 14A(1).

7. Each hedge is only a few metres long.

8. Ms Carrington declared her intention for each hedge. She will remove Hedge 1 shortly. She intends to grow bamboo in Hedge 2 to the top of her upper-storey bedroom window. I estimate this to be a height of around 5 metres above ground…